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If the jury do no, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial.

() Must find facts only.-A special verdict must find the facts and not the mere evidence of them. (Fuller v. Van Geisen, 4 Hill, 171; Hill v. Covell, 1 N. Y., 522.)

A special verdict is defective which does not find, one way or the other, as to all the issues. (Kentz v. McNeal, 1 Den., 436.)

(b) Omitting fact inadvertently, effect of.-When a fact not controverted has been inadvertently omitted in a special verdict, the court will grant a 'venire de novo" unless the opposite party will consent to amend it. Watson v. Delafield, 1 Johns., 150.)

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§ 444. Upon indictment for offense consisting of different degrees jury may convict of any degree, or of any attempt to commit the offense. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.

(a) Grand larceny.-A defendant indicted for grand larceny may be, upon trial, convicted of petit larceny. (People v. McTameny, 1 N. Y., Cr. R., 437.) (b) An indictment of murder.-An indictment for murder in the first degree permits a conviction of manslaughter in the first degree upon a plea of guilty of a lesser crime. People v. McDonnell, 92 N. Y., 657.)

(c) Facts and circumstances.-which constitute the lesser crime need not be averred in the indictment. If they be proven it is sufficient. Id.

(d) Conviction for the lesser offense.-When requested to charge, that, if doubt existed in the mind of the jury as to the grade of the offense committed, it was their duty to convict of the lesser, the court said that it had told the jury that the prisoner was entitled to all reasonable doubt. Held sufficient. (Abbott v. People, 86 N. Y. 460.) (People v. Palmer, N. Y., Cr. R., 101.)

Upon an indictment for a crime, consisting of different degrees, the jury may, by a general verdict, find defendant not guilty of any of the inferior degrees. (People v. Taylor, 3 N. Y. Crim. R., 297.)

(e) An attempt to commit a crime-A prisoner indicted for a crime may be convicted for an attempt to commit the crime. People v. Jackson, 3 Hill, 92.

§ 445. In other cases, jury may convict of any offense necessarily included in that charge. In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indict

ment.

(a) Felony or disdemeanor.-Under an indictment for a felony the prisoner may be convicted of a crime of the same class of an inferior grade though only a misdemeanor. (People v. Jackson, 3 Hill, 92; Palmer v. People, 5 id., 427; see, also, cases cited under § 444, ante.

§ 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others.-On an in dictment against one or more, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly; and the case, as to the rest, may be tried by another jury.

Two defendants jointly indicted for an offense, arising out of the same trans

actions, may be convicted of different degrees of the same crime. (Klein v. People, 31 N. Y., 229)

§ 447. In what cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal the court cannot require the jury to reconsider it.

§ 448. In what cases court may direct are consideration of the verdict. If the jury render a verdict which is neither a general nor a special verdict, as defined in sections four hundred and thirty-seven and four hundred and thirty-eight, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot be recorded, until it be rendered in some form, from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court.

§ 449. When a judgment may be given upon an informal verdict.— If the jury persist in finding an informal verdict, from which, however, it can be clearly understood, that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given, unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict.

$450. Polling the jury. When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation.

§451. Recording the verdict. When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement be expressed, the verdict is complete, and the jury must be discharged from the case.

(a) Polling the jury.—A party cannot insist on a specific manner in which the jury shall be polled other than that prescribed in the statute. (Leighton v. People, 10 Abb. N. C., 261; 88 N. Y., 117.)

(b) When juror may dissent.-Until a verdict is openly delievered and recorded any of the jurors may dissent from it on being polled. (Root v. Sherwood, 6 Johns., 68.)

(c) Must be polled before verdict is recorded.--The jury may be polled at any time before the verdict is recorded. (Fox v. Smith, 3 Cow., 23; Labor v. Koplin, 4 N. Y., 547.)

(d) May be polled where sealed verdict is given.-A party is entitled to poll the jury when a sealed verdict is brought in. (Fink v. Hawkes, 2 Wend., 619.) Fox v. Smith, 3 Cow., 23.

(e) Form of polling.-In polling a jury the only inquiry is, "Is this your verdict?" (Labar v. Koplin, 4 N. Y., 547.)

(f) Objections to form.-Any objection to the form of polling the jury, not taken at the time, is waived. (Green v. Bliss, 12 How., 428.)

§ 452. Defendant, when to be discharged or detained after acquittal. If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given; except that when the acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention, to the end that a new indictment may be preferred, in the same manner and with the like effect as provided in sections four hundred and eight and four hundred and nine.

The question of variance discussed at length in People v. Fuller, 12 Abb. N. C., 196.

§ 453. Proceedings upon general verdict of conviction or a special verdict. If a general verdict be rendered against the defendant, or a special verdict be given, he must be remanded; if in custody, or if on bail, he may be committed to the proper officer of the county, to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money be deposited instead of bail, it must be refunded to the defendant.

§ 454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict; commitment of defendant to state lunatic asylum.-When the defense is insanity of the defendant the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court must, thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the state lunatic asylum, until he becomes sane.

TITLE VIII.

OF THE PROCEEDINGS AFTER TRIAL AND BEFORE JUDGMENT.

CHAPTER I. Bill of exceptions.

II. New trials.

III. Arrest of judgment.

CHAPTER I.

BILL OF EXCEPTIONS.

SECTION 455. In what cases.

456. By whom settled, and how filed.

457. To be settled at the trial, or the point noted in writing.
458, 459. When and how settled, after the trial.

460. Enlarging the time therefor.

461. Effect of not serving exceptions or amendments, within the time prescribed.

§ 455. In what cases. On the trial of an indictment, exceptions may be taken by the defendant, to a decision of the court, upon a matter of law, by which his substantial rights are prejudiced and not otherwise, in any of the following cases:

1. In disallowing a challenge to the panel of the jury;

2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdiet, or in allowing or disallowing such challenge;

3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or intructing the jury upon the law, on the trial of the issue.

(a) An exception to the charge when unavailable.-An exception to the charge of the court taken after the trial is ended, viz.: when the prisoner is arraigned for sentence, presents no question of law for the appellate court. (People v. Hovey, 92 N. Y., 554.)

(b) Charge to jury.-It is not error to refuse to submit to the jury a proposition whose only tendency would be to confuse, the same having been already correctly submitted. Walker v. People, 1 N. Y., Crim. R. 7.

In determining whether or not the court erred in refusing to charge, the whole charge must be examined with reference to determining whether or not the plaintiff has any substantial ground for complaint. (Berry v. People, 1 N. Y., Crim. R. 43, 57.)

(c) A general objection to the remarks of the court made to the jury on a failure to agree is unavailing on an appeal where part of the remarks were proper. Berry v. People, 1 N. Y., Crim. R. 43; affirmed, id. 57; 77 N. Y., 588.)

() May review decision of challenge.-If the court overrule a challenge to favor, when properly made, it may be reviewed on exception; and also when the court refuses to allow competent evidence to be given in determining the challenge. (People v. Casey, 2 Cr. R. 194; 96 N. Y., 115.)

(e) Wholly irrelevant evidence not ground. The rejection of evidence which is wholly irrelevant to the issues is not a ground of exception. (Purchase v. Matteson, 6 Duer, 587.)

Quære.-Can exceptions only be heard upon challenges for cause, with respect to jurors who participated in the verdict. (People v. Willett, 3 N. Y., Cr. R. 327.)

§ 456. By whom settled, and how filed- -A bill containing the exceptions must be settled and signed by the presiding judge, and filed with the clerk.

§ 457. To be settled at the trial, or the point noted in writing.The bill of exceptions must be settled at the trial unless the

court otherwise direct. If no such direction be given, the point of the exception must be particularly stated in writing, and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth.

§ 458. When and how settled, after the trial.—If the bill of exceptions be not settled at the trial it must be prepared and served, within five days thereafter, on the district attorney, who may, within five days, serve on the defendant or his counsel, amendments thereto. The defendant may then, within five days, serve the district attorney with a notice to appear before the presiding judge of the court, at a specified time, whether in or out of court, not less than five nor more than ten days thereafter, to have the bill of exceptions settled.

§ 459. When and how settled, after the trial.—At the time appointed, the judge must settle and sign the bill of exceptions.

§ 460. Enlarging the time therefore. The time for preparing. the bill of exceptions or the amendments thereto, or for settling the same, may be enlarged by consent of the parties, or by the presiding judge, or by a judge of the supreme court, but by no other officer.

§ 461. Effect of not serving exceptions or amendments, within the time prescribed.-If the bill of exceptions be not served within the time prescribed in section four hundred and fifty-eight, or within the enlarged time therefor, as prescribed in the last section, the exceptions are deemed abandoned. If it be served, and the parties omit, within the time limited by section four hundred and fifty-eight, the one to prepare amendments, and the other to give notice of appearance before the judge, they are respectively deemed, the one to have agreed to the bill of exceptions, and the other to the amendments.

§ 462.

CHAPTER II.

NEW TRIALS.

SECTION 462. New trial.

463. When granted.

464. Effect of granting new trial.
465. In what cases granted.

466. Application, when to be made.

New trial.-A new trial is a re-examination of the issue, in the same court, before another jury, after a verdict has been given.

§ 463. When granted.-A new trial can be granted by the court in which the former trial was had only in the cases provided in section four hundred and sixty-five.

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